T denies warranty change for Old Colony rail ties

Jack Sullivan

Wednesday

Feb 23, 2011 at 12:01 AMFeb 23, 2011 at 11:19 PM

Agency says Rocla sought Moakley’s help on contract

The MBTA in court filings denies it agreed to a change in the warranty on concrete ties it purchased for the Old Colony commuter rail line and hints that political lobbying by former US Rep. Joseph Moakley may have played some role in the hiring of Rocla Concrete Ties of Denver.

The T’s filing in federal court is the latest development in a lawsuit by the cash-strapped transit authority to recover $91 million it is spending to replace more than 147,000 concrete ties that are crumbling less than a decade after being installed. Rocla, in an earlier filing, said it is liable for no more than $9 million because the T agreed to limit the warranty on the concrete railroad ties to three years instead of 15.

The T in its filing said no one in authority at the agency agreed to any change in the warranty. The agency says none of the people Rocla identifies as approving the change had the power to do so.

“None of the MBTA employees that Rocla identifies as having been present at the purported February 13, 1995 meeting would have had the authority to agree to any changes to the warranty specified in the advertised specifications,” according to the agency’s court filing. “Any alteration to the warranty for concrete ties would have been considered a significant modification that, under the MBTA’s practices and procedures, would have likely resulted in cancelling the request for bids and re-advertising the request for bids with modified specifications reflecting a modified warranty.”

Rocla is insisting it is liable for no more than $9 million, the cost of the original ties, because the alleged amended warranty only requires the company to supply replacement ties or give the T a credit for the original price if problems were discovered more than three years after installation. The alleged amended warranty covers full replacement costs only for the first three years after the 1997 installation. Those full replacement costs include labor, removal, reinstallation of replacement ties, and shipping.

The MBTA maintains the bidding specifications clearly stated the ties should include a full 15-year warranty that covers all costs. Officials said they have no signed contract or addendum showing any change in the warranty period, despite Rocla’s inclusion of letters, notes, and memos referring to meetings and agreements with T officials. One former MBTA employee identified by Rocla, William Boodry, filed an affidavit in support of the T saying he recalls no such agreement and says neither he nor the other four people at the reported meeting were authorized to make such significant changes.

When the T first sought bids for ties for the Old Colony lines, wooden ties were the choice because of prior problems with defective concrete ties on two stretches of the MBTA’s Needham and Attleboro commuter rail lines. Those problems prompted the T to sue the manufacturer and Rocla. Rocla wrote the specifications for those ties and subcontracted out the manufacturing work.

Despite intense marketing by Rocla to revisit the use of concrete ties on the Old Colony lines, T officials wrote to the company that the previous problems were a costly mistake and nothing had changed to make them choose concrete over wood.

The T’s filing says Rocla subsequently lobbied Moakley’s office “in an attempt to exert influence on the MBTA to reconsider the use of concrete ties on the Old Colony Line.” The brief does not indicate if the late congressman or his aides ever contacted T officials, but a short time later Rocla managed to secure the T contract.

First, Rocla submitted a bid including concrete ties for the T’s request for a wooden tie installation. T officials then withdrew their request for a wooden tie installation and issued a new request for bids using concrete tie specifications set out by Rocla. The T’s filing gives no indication what changed the minds of authority officials, but Rocla then submitted a new bid that was far higher in cost than its original “nonconforming” submission.

“After Rocla succeeded in its marketing and lobbying efforts to have the Old Colony Line redesigned for concrete ties, Rocla increased its price by 20 percent over the price it offered in its prior non-conforming bid,” according to the T’s brief.

The MBTA filing – which is about 150 pages compared to more than 600 pages filed by Rocla in its motion for summary judgment – also says the agency never would have agreed to concrete ties instead of wood had Rocla not represented that its concrete ties would last 50 years. Rocla denies ever making that claim.

“The MBTA has specifically identified at least one occasion where a Rocla employee represented to the MBTA that concrete ties would last for fifty years, a representation that was so specific that the former employee recalls the explicit representation being made more than 15 years later,” according to the T’s filing. “The MBTA’s procurement of concrete ties was predicated on the concrete ties having a 50-year life cycle.”

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